Day: May 12, 2020

How Should Employers Respond to Misconduct Allegations?

Employers must act appropriately when investigating allegations of misconduct. The application of procedural fairness is essential when conducting such investigations.

Case Study Example

The Fair Work Commission examined this concept in Deng v Westpac Banking Corporation (30/11/18).

Mr Deng was, at the relevant time, employed as a Mobile Lending Manager with Westpac. Westpac terminated his services because of breaches of the Code of Conduct, the Westpac Group Technology Code of Use, and Mr Deng’s attestation certificate.

The Commission considered the investigation process. It was determined Westpac sent a letter to Mr Deng advising him to report for an interview the following day. The interview was deferred one day to allow Mr Deng’s wife to act as a support person. The letter included limited advice as to the alleged misconduct.

He was interviewed for five hours with only two short breaks. Neither he nor his wife were offered any food, tea or coffee during the interview process.

Approximately five weeks later he received a notice of advice of intention to terminate employment. This notice addressed, in detail, eight allegations reaching a determination that each one had been substantiated.

He was given one day to respond to the letter. He did so and provided a further explanation as to his conduct.

Commissioner Riordan determined Westpac did have the right to terminate employment. However, the Commissioner highlighted inappropriate conduct by Westpac employees. He referred to the interview process as a “Star Chamber”. The investigation process was, in his opinion, “flawed”. He highlighted that the investigator did not make any enquiries relative to any information provided by Mr Deng.

There was no independent review of the report provided by the investigator – Westpac accepted the report without questioning any of the findings. It was the opinion of the Commissioner that the investigation was, at best, nothing more than a statement of the “opinion” of the investigator. There was no attempt to obtain any form of corroboration or to conduct any enquiries in relation to any of the responses provided by Mr Deng.

The Commissioner highlighted the lack of procedural fairness. He stated the method of interview (five hours without a substantive break) was inappropriate. Providing only one day for Mr Deng to respond to the “Intent to terminate employment” notice was not in accordance with procedural fairness.

The Commissioner highlighted that “innuendo and assumption are poor substitutes for primary evidence”.

The Commissioner directed that Mr Deng should be reinstated.

What can we learn from this?

This decision highlights the complexities of conduct investigations. They should only be conducted by experienced personnel who are fully aware of the evidentiary requirements, the need to explore all relevant avenues and the essential need to provide the respondent with procedural fairness at all stages of the investigation.

It is important to appreciate that conduct investigations have the potential to impact on the respondent, his or her family, the organisation and other employees within the organisation. If they are not conducted in accordance with administrative guidelines, then these investigations can destroy lives.

ACCA is experienced in these investigations and can provide independent advice and expertise.